Discussion of qualifying ruling for government appeals:
- “. .” R.C.M. 908(a). a. United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008). Accused charged with various offenses related to using government computers to access child pornography. Military judge granted defense motion, in part, to exclude evidence obtained from a search of the government’s computer. The government later introduced evidence to the panel that violated the military judge’s ruling. The military judge declared a mistrial to the affected charge and specification. The government appealed the decision pursuant to Article 62. The Navy- Marine Court of Criminal Appeals initially denied the government’s appeal stating that it did not have jurisdiction. The Navy-Marine Court of Criminal Appeals reconsidered its ruling and determined that “terminates the proceedings” means to “terminate the proceedings before the particular court-martial to which a charge has been referred” and that it had jurisdiction. The court then vacated the military judge’s order declaring a mistrial and reinstated the original charge and specification. b. United States v. Weymouth , 40 M.J. 798 (A.F.C.M.R. 1994), aff’d 43 M.J. 329 (1995). Accused charged with various offenses arising out of stabbing fellow airman (attempted murder, assault with intent to commit murder, assault by stabbing with a dangerous weapon, assault by IIGBH). MJ granted defense motion to dismiss all but attempted murder on multiplicity grounds, but advised parties he would instruct on any lesser-included offenses raised by the evidence during trial. Parties further agreed accused could only stand convicted of one offense. AFCMR held that MJ “terminate[d] the proceedings with respect to a charge or specification” when dismissed on multiplicity grounds; although he would instruct on lesser-included raised by the evidence, no recourse was likely for the government if the MJ concluded that the LIO was not raised by the evidence. Thus, jurisdiction was proper under Article 62, UCMJ. c. United States v. Woods , 28 M.J. 318 (C.M.A. 1989). The court reversed the trial court’s ruling to dismiss a charge alleging a violation of Article 134 (sexually transmitting a deadly virus).
- R.C.M. 908(a). a. United States v. Baldwin , 54 M.J. 551 (A.F. Ct. Crim. App. 2000). Appellate court found, on reconsideration request by government, that military judge erroneously suppressed the accused’s confession. b. United States v. Stevenson, 53 M.J. 257 (2000), cert. denied, No. 00-919, 2001 U.S. LEXIS 2192 (U.S. Mar. 19, 2001). Government appealed the NMCCA decision affirming the military judge’s ruling to suppress DNA evidence obtained from the accused’s blood. CAAF reversed the NMCCA and returned the case to the Navy for remand to the court- martial for trial on the merits. c. United States v. Moore , 41 M.J. 812 (N-M. Ct. Crim. App. 1995). The appellate court reversed the MJ’s grant of defense’s motion to suppress the results of two urine tests. In case of urinalysis testing, MJ’s findings regarding the “primary purpose” may be a “matter of fact,” but “whether the examination is an inspection, is a matter of law.” d. United States v. Phillips , 30 M.J. 1 (C.M.A. 1990) (hearing a government appeal concerning the MJ’s ruling that the accused was improperly “seized” within the meaning of the fourth amendment; trial court upheld). e. United States v. Konieczka , 30 M.J. 752 (A.C.M.R. 1990) (considering whether a urinalysis test was properly suppressed; trial court reversed). f. United States v. Austin , 21 M.J. 592 (A.C.M.R. 1985) (considering whether a urinalysis test was properly suppressed; trial court upheld). g. United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010) (finding that a military judge’s decision to not “preadmit” evidence constitute “[a]n order or ruling which excludes evidence that is substantial proof of fact material in the proceeding). h. “It is sufficient that the petitioner believes that the evidence is significant.” United States v. Scholz , 19 M.J. 530 (A.F.C.M.R. 1984). See also United States v. Pacheco , 36 M.J. 530 (A.F.C.M.R. 1992) (“it is not necessary that the evidence suppressed be the only evidence in the case”); United States v. Hamilton , 36 M.J. 927 (A.F.C.M.R. 1993).
- Or, the of an R.C.M. 908 appealable order. a. United States v. Sepulveda , 40 M.J. 856 (A.F.C.M.R. 1994). The MJ granted defense’s motion to dismiss three specifications of indecent acts as lesser-included offenses of three indecent assault specifications also charged, and further granted defense’s motion to consolidate three specs of indecent assault into one specification. AFCMR found jurisdiction for appeal appropriate to determine whether dismissal should be with or without prejudice, because the MJ terminated proceedings with regard to indecent acts specifications. Jurisdiction was also proper with regard to the consolidated specs. since consolidation is a functional equivalent of dismissal. b. United States v. True , 28 M.J. 1 (C.M.A. 1989). The MJ’s abatement order was the “functional equivalent” of a ruling that terminates the proceedings. The MJ ordered the Government to provide a defense expert and the CA would not pay. Use the “practical effects” test. See also United States v. Metcalf , 34 M.J. 1056 (A.F.C.M.R. 1992). c. United States v. Harding, 63 M.J. 65 (CAAF 2006). MJ’s abatement order in this case was not a “termination of proceedings” and the Government appeal was not valid under Article 62, UCMJ. MJ simply abated proceedings pending enforcement of a warrant of attachment; in this case the Government acknowledged that the Marshal’s Service had not enforced the writ of attachment the MJ issued to obtain certain records.
- “an order or ruling that is, or amounts to, a finding of not guilty of a charge or specification”. United States v. Adams, 52 M.J. 836 (A.F. Ct. Crim. App. 2000). Appellate court lacked jurisdiction to hear government appeal of military judge’s granting of defense motion for a finding of not guilty pursuant to R.C.M. 917. But see United States v. Brooks , 41 M.J. 792 (Army Ct. Crim. App. 1995). A court- martial panel president announced guilty to specification “by absolute majority.” Voir dire of the panel indicated several straw votes were taken on the specification – which resulted in insufficient votes to convict – MJ entered finding of not guilty to specification. Government filed appeal under R.C.M. 908. The appellate court had jurisdiction, notwithstanding a finding of not guilty , since MJ’s characterization of the action was not controlling, and since the case was a members trial, only the panel could evaluate the evidence and render findings as to guilt or innocence (except for R.C.M. 917 finding). Therefore, the act of the MJ amounted to a dismissal with prejudice, and was a proper subject for government appeal.
- . The 1996 expansion of Art. 62, and 1998 changes to R.C.M. 908(a), permits appeal of a judge’s order or ruling directing disclosure of classified information or imposing sanctions for nondisclosure of classified information. The government may also appeal a refusal of the judge to issue a protective order to prevent disclosure of classified information, or refusal to enforce such an order previously issued by competent authority.